Citation Nr: 0603432
Decision Date: 02/07/06 Archive Date: 02/15/06
DOCKET NO. 03-14 842 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in No. Little Rock, Arkansas
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
ATTORNEY FOR THE BOARD
W. Yates, Counsel
INTRODUCTION
The veteran served on active duty from December 1968 to
October 1970. He died in June 2000, and the appellant is his
widow.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2000 RO decision which, in
pertinent part, denied service connection for the cause of
the veteran's death. In August 2001, the appellant filed a
notice of disagreement with this issue.
In June 2004, the Board remanded the appellant's claim for
issuance of a statement of the case on the issue of service
connection for the cause of the veteran's death. See
Manlincon v. West, 12 Vet. App. 238 (1999). In June 2004,
the RO issued a statement of the case in this matter, and in
August 2004, the appellant timely perfected her appeal
herein.
In January 2005, the Board remanded the appellant's claim to
the RO for additional evidentiary and procedural development
to ensure compliance with the VA's duty to notify and assist.
FINDINGS OF FACT
1. A June 2000 certificate of death indicates that the
veteran died on June [redacted], 2000, at the age of 52. The death
certificate listed the immediate cause of death as natural
causes, etiology unknown. It also listed diabetes and
hypertension as other significant conditions contributing to
death, but not resulting in the underlying cause.
2. At the time of the veteran's death, he was service-
connected for post-traumatic stress disorder (PTSD),
evaluated as 30 percent disabling; residuals of muscle wound
to the right shoulder, muscle group III, evaluated as 30
percent disabling; and shell fragment wound scar to the left
arm, rated as noncompensable (0 percent). His combined
service-connected disability rating was 50 percent, and had
been in effect for many years.
3. Neither diabetes mellitus or hypertension, were
manifested during the veteran's period of active military
service, or within one year after his separation therefrom.
4. The veteran's service-connected disabilities did not
cause or contribute substantially or materially to cause or
hasten the veteran's death.
CONCLUSION OF LAW
The cause of the veteran's death was not related to an injury
or disease incurred in or aggravated by active military
service. 38 U.S.C.A. §§ 1110, 1131, 1310 (West 2002); 38
C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.312 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
The veteran in this case served honorably on active duty in
the Army from December 1968 to October 1970. His report of
separation, Form DD 214, revealed that he served in the
Republic of Vietnam and was awarded, in part, a Combat
Infantryman Badge.
During his military service, the veteran was treated for a
mortar fragment wound of the left upper arm and right
shoulder in December 1969. No treatment for diabetes
mellitus or hypertension was indicated. His separation
examination, performed in October 1970, noted his
cardiovascular and endocrine systems were normal, and noted
that his blood pressure was 120/68.
Post service VA examinations, performed in December 1970 and
in December 1971, noted that the veteran's blood pressure was
116/74 and 110/78, respectively.
Subsequent treatment records do not show diagnoses of
hypertension and diabetes mellitus until the mid 1990's, some
twenty-five years after his discharge from the service.
Specifically, the veteran's most recent treatment records,
dated in August 1999 and in March 2000, show that he had
diabetes mellitus, type 1.
On June [redacted], 2000, the veteran passed away at the age of 52.
His death certificate listed the immediate cause of death as
natural causes, etiology unknown. It also listed diabetes
mellitus and hypertension as other significant conditions
contributing to death but not resulting in the underlying
cause.
At the time of his death, the veteran was service-connected
for PTSD, evaluated as 30 percent disabling; residuals of
muscle wound to the right shoulder, muscle group III,
evaluated as 30 percent disabling; and shell fragment wound
scar to the left arm, rated as noncompensable (0 percent).
His combined service-connected disability rating was 50
percent, and had been in effect since 1991.
II. Analysis
The appellant, the widow of the veteran, claims that service
connection is warranted for the cause of the veteran's death.
For service connection for the cause of a veteran's death,
the evidence must show that a disability incurred in or
aggravated by service either caused or contributed
substantially or materially to death. For a service-
connected disability to be the cause of death, it must singly
or with some other condition be the immediate or underlying
cause, or be etiologically related. For a service-connected
disability to constitute a contributory cause, it is not
sufficient to show that it casually shared in producing
death, but, rather, there must have been a causal connection.
38 U.S.C.A. § 1310; 38 C.F.R. § 3.312.
Service connection may be granted for disability due to a
disease or injury which was incurred in or aggravated by
active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
Service connection will be rebuttably presumed for certain
chronic diseases, including diabetes mellitus and
hypertension, which are manifest to a compensable degree
within the year after active service. 38 U.S.C.A. §§ 1101,
1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
As noted above, the veteran served on active duty from
December 1968 to October 1970. He died in June 2000, at the
age of 52. The death certificate listed the immediate cause
of death as natural causes, etiology unknown. It also listed
diabetes and hypertension as other significant conditions
contributing to death, but not resulting in the underlying
cause.
The Board notes that there is no medical evidence of record
suggesting that the veteran's service-connected disorders in
any way contributed to cause of his death.
As for the veteran's hypertension and diabetes mellitus, type
1, there is no indication that either of these conditions was
incurred or aggravated during service or within the first
post service year. The veteran's service medical records,
and post service treatment records for over twenty years fail
to show any treatment for either of these conditions. The
Board also notes that the veteran's diabetes mellitus, type
1, is not entitled to presumptive service connection based
upon the veteran's inservice exposure to herbicides pursuant
to 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e)
(presumption only for Type 2 diabetes).
As a layman, the appellant has no competence to give a
medical opinion on diagnosis or causation. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).
In sum, the weight of the credible evidence establishes that
the veteran died decades after service due to natural causes,
etiology unknown, and that diabetes and hypertension were
also significant conditions contributing to death, but not
resulting in the underlying cause. These conditions began
many years after service and were not caused by any incident
of service. Moreover, a service-connected disability did not
cause or contribute to the veteran's death, and thus there is
no basis for service connection for the cause of his death.
As the preponderance of the evidence is against the claim,
the benefit-of-the-doubt doctrine is inapplicable, and the
claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
Veterans Claims Assistance Act of 2000
VA has certain notice and assistance requirements it affords
claimants. 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002);
38 C.F.R. § 3.159(b) and (c) (2004).
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S.
Court of Appeals for Veterans Claims held, in part, that
notice, as required by 38 U.S.C.A. § 5103(a), must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for VA
benefits, and must (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim. 18 Vet. App. at 120-121.
The RO's September 2000, December 2001 and February 2005
letters, the RO's November 2000 decision, the May 2003
statement of the case (SOC), the June 2004 and August 2005
supplemental SOCs, and the Board's June 2004 and January 2005
remands, advised the appellant what information and evidence
was needed to substantiate her claim herein and what
information and evidence had to be submitted by her, namely,
any additional evidence and argument concerning the claimed
condition and enough information for the RO to request
records from the sources identified by the appellant. The
documents also advised her what information and evidence
would be obtained by VA, namely, records like medical
records, employment records, and records from other Federal
agencies. Finally, the February 2005 letter from the RO
specifically informed the appellant to submit any pertinent
evidence in her possession. Thus, the Board finds that the
content requirements of the notice VA is to provide under the
VCAA have been met.
Further, the Board finds that any defect with respect to the
timing of the VCAA notice requirement was harmless error.
Although complete VCAA notice was not provided to the
appellant prior to the initial adjudications herein, the
appellant has not been prejudiced thereby. The content of
the notice provided to the appellant has fully complied with
the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) regarding VA's duty to notify. Also, the appellant
has been provided with every opportunity to submit evidence
and argument in support of her claim, to respond to VA
notices, and otherwise afforded a meaningful opportunity to
participate effectively in the processing of her claim.
Thus, the Board considers any defect in the timing of the
notice provided to the appellant to be harmless.
With respect to the VA's duty to assist, the RO obtained, or
made reasonable attempts to obtain, all relevant evidence
identified by the appellant. The evidence of record, does
not suggest any relationship between conditions which caused
the veteran's death and his active duty service. There is
also no evidence suggesting that the veteran's service
connected disabilities hastened the veteran's death in any
way. Thus, the Board considers the VA's duty to assist is
satisfied.
In the circumstances of this case, additional efforts to
assist or notify her in accordance with the VCAA would serve
no useful purpose. VA has satisfied its duties to inform and
assist the appellant at every stage of this case as it
pertains to the claim herein adjudicated. Therefore, the
appellant will not be prejudiced as a result of the Board
proceeding to the merits of the claim.
ORDER
Service connection for the cause of the veteran's death is
denied.
____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs